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Part 2: The meaning of "nullum crimen, nulla poena sine lege
praevia" in the criminal proceedings against Eichmann
A. General remarks and scope of the discussion
I. The principle of the prohibition of criminal statutes
having retrospective effect is generally described, in
continental jurisdiction, by the maxim "nullum crimen, nulla
poena sine lege (scripta et praevia)"; in Anglo-American
jurisdictions, it is customary to call it: prohibition of
"ex-post-facto legislation". The principle of "nullum
crimen" includes, in addition to the prohibition of
legislation having retrospective effect, also the principle
of certainty, i.e., the requirement of a distinct definition
of the facts constituting an offence.
II. The Accused Eichmann is charged in the Information with
the commission of offences all of which are classified as
offences against sec.1. (crimes against the Jewish People,
crimes against humanity and war crimes) and against sec. 3
(crimes of membership) of the Nazi Punishment Law. In the
Information, reference is made, in addition to the aforesaid
provisions, also to sec. 23 of the Criminal Code Ordinance,
1936. This latter provision does not define facts
constituting an offence, but the rules regarding
accessories; in particular it regulates the question of the
indirect commission of an offence. This provision can
therefore be disregarded in the following discussion; for
Eichmann's punishment as having acted indirectly would be
unobjectionable even without the existence of a provision
regulating the indirect commission of an offence (provided,
of course, that Israel has jurisdiction and the material
validity of the Nazi Punishment Law is established). The
discussion can therefore be confined to secs. 1 and 3 of the
Nazi Punishment Law.
Owing to this restriction, there is also no need to discuss
the question whether objections based upon the principle of
"nullum crimen" might be raised against secs. 2 and 4 of
the Nazi Punishment Law which refer expressly to offences
under the "Criminal Code Ordinance" of 1936. However -
should the Information be amended so as to apply a different
legal provision to the facts as charged - it will be
sufficient to state that the Criminal Code Ordinance
continues to be in force as new Israeli law. Although the
Ordinance continues to be in force as to its contents - more
or less - as enacted in 1936, its legal basis as part of
Israeli law, however, is only the provision of the
Declaration of Independence, dated 14 May 1948 - that the
law in force in Palestine on that date shall continue to be
in force, inasmuch as it is not in contradiction to the
legal principles embodied in the Declaration of Independence
- and the corresponding provision of sec. 11 of the "Law and
Administration Ordinance, 5708-1948," dated 21 May 1948.
III. Crime against humanity[1] and the crime of membership
in an organization (as a crime against humanity in the wider
connotation) are offences unknown in Israeli law before the
enactment of the Nazis and Nazi Collaborators (Punishment)
Law on 1 August 1950. Neither were these offences known in
international criminal law up to the end of the Second World
War. This statement cannot be met by the objection that in
Israeli law - as well as in the law of other nations -
certain varieties of the crime against humanity, as for
instance homicide, had been punishable by law already before
1950, and that to that extent crimes against humanity should
not be considered as being a "new" offence at all. But in
reply to that objection it has to be stated that sec. 1 of
the Nazi Punishment Law - as well as art. 6(c) of the London
Charter and art.II 1(c) of the Control Council Law No.10
which already served as the model for the Israeli provision
- is not intended to bring about only a specification of
facts which had already constituted an offence and a change
in the penalties provided, but to establish a new offence
which is intended to deal with a kind of criminal activity
entirely new in the view of Israel (and of the allied
victorious powers).[2] This applies, in particular, to the
crimes against the Jewish People characterized by the
offender's intention "to destroy the Jewish People in whole
or in part" (sec. 1 (b) of the Nazi Punishment Law). The
criminal proceedings in Israel against Eichmann are
distinguished, in addition, by the fact that at the time
when the Accused had committed the offences imputed to him,
a general Israeli criminal code under which the "classic"
crimes, as murder, unlawful wounding, deprivation of liberty
etc., had been made punishable, had not even existed and
that Israel, as has been demonstrated above in detail,
cannot claim jurisdiction under international law over the
Accused Eichmann either in respect of these "classic" crimes
or in respect of the crimes against humanity.
These facts are corroboration of the view that secs. 1 and 3
of the Nazi Punishment Law constitute, without any doubt, an
"ex-post-facto law" - a criminal law having no retrospective
effect.
B. I. The principle of "nulla poena sine lege" in
continental-European jurisdictions
1. Germany
The catchwordlike formulation of the principle has its
origin with Paul Johann Anselm Feuerbach who, in his
"Lehrbuch des gemeinen in Deutschland gueltigen peinlichen
Rechts" (1st ed. 1801), coined the following dictum:
"Nulla poena sine lege, nulla poena sine crimine,
nullum crimen sine poena legali."
However, it would be erroneous to assume that this formula
is also the historical origin of the principle itself, the
history of the principle is much longer.[3]
At the time of the Weimar Republic, this principle has been
entrenched constitutionally as a basic right in art. 116 of
the Constitution of the Reich. The Bonn Basic Law for the
Federal Republic of Germany, dated 1949, has likewise
established the prohibition of legislation with
retrospective effect as a basic right, in art. 103 (II). The
retrospective effect of the criminal statute, as well as its
construction by way of analogy to the detriment of the
Accused, has been - or is - prohibited in both cases by
virtue of constitutional provision.
2. France
The prohibition of construction by way of analogy and of
legislation with retrospective effect had already been one
of the demands of the French revolution. This demand had
been expressed in art. 8 of the Declaration of Human Rights,
dated 26 August 1789, as follows:
"Nul ne peut etre puni qu'en vertu d'une loi etablie et
promulgee anterieurement au delit et legalement
appliquee."
Art. 14 of the French constitution added thereto:
"La loi qui punirait des delits avant qu'elle existat,
serait une tyrannie, l'effet retroactif donne a cette
loi, un crime."
The Penal Code of 1810 - which is still in force at present
- has given expression to the prohibition of legislation
with retrospective effect in its art. 4, as follows:
"Nulle contravention, nul delit, nul crime, ne veuvent
etre punis de peines qui n'etaient pas prononcees par
la loi avant qu'ils fussent commis."
The result of the foregoing is that France, too, has
established the prohibition of legislation with retroactive
effect and of the construction of statutes by way of
analogy. It has to be admitted that French jurisprudence has
claimed the power of elastic interpretation to a wider
extent than e.g. German jurisprudence; in these instances it
has frequently at least verged upon analogy as a means of
construction.[4] Moreover, there have been in France
criminal statutes with retrospective effect; however, these
statutes always provided only for the increase of penalties
but not for the creation of new offences.[5]
3. The Soviet Union
Already the "Principles of Criminal Procedure of the USSR
and of the Republics of the Union" of 1924 provided, in art.
3., for the prohibition of legislation with retrospective
effect. However, in practice, these principles have been
frequently disregarded.[6]
The "Principles of Criminal Legislation of the USSR and of
the Republics of the Union", dated 25 December 1958,
expressly provided, in art. 6 (1) and (3), for the
prohibition of retrospective application:
"(1) The criminal nature and the punishment of an act
are determined by the law which was in force at the
time when the act was committed.
(2)...
(3) A statute providing for the punishment of an act or
increasing penalties has no retrospective effect."
Although the practice which disregards the prohibition of
retrospective application which had been in force already in
1924 justifies even today the exercise of some caution in
the evaluation of the chances of the actual respect for the
principle, nevertheless, in Schroeder's opinion,7 it cannot
be denied that the prohibition of retrospective application
established in art. 6 of the "Principles of 1958" has some
actual contents of reality for political and social reasons.
II. The principle of "nulla poena sine lege" in Anglo-
American jurisdictions
As to interpretation by way of analogy and the creation of
new offences, Anglo-American law has always conferred upon
the courts wider powers than those vested in the continental
courts. This difference is based, in the last analysis, upon
the principles of the common law which, by its very nature,
is prevented from excluding the creation of criminal
customary law. An important example is provided by the
decision in Rex v. Manley[8] - which has met with some
vehement criticism[9] - where the court practically created
a new offence, although relying upon precedents (their
relevance in the case in question has been strongly
disputed). On the whole it may, however, be concluded that
in England the practice of judge-made law within the
framework of the Common Law, has been recognized, as a
matter of principle, also as far as criminal law is
concerned, but that this practice has been exercised with
the greatest caution.[10] This is also confirmed by
Radbruch:
"The English judges have exercised their power to
create new criminal law by way of precedent, only with
judicious caution: `In all periods of English history
it has been far more difficult to enlarge the scope of
criminal law by way of judicial precedent than any
other branch of the law' (Holdsworth)."[11]
For the sake of completeness, however, two statements from
more recent times ought to be mentioned where - in
connection with the trials of war criminals - the existence
of the law_making function of judges has been denied
generally. In this sense, it has been stated by the American
Judge Leon W. Power:[12]
"One thing which should be made unmistakably clear at
the outset is that the Tribunal is not a law-making
institution. I violently disagree with the opinion that
we are engaged in enforcing international law which has
not been codified, and that we have an obligation to
lay down rules of conduct for the guidance of nations
in future. Such a conception entirely misconstrues our
function and our power, and must inevitably lead to
error of the grossest sort."
A similar opinion has been voiced by the Indian judge
Pal.[13] Moreover, there is no room for exaggerating the
difference between English judge-made law and the
continental system of statutory offences. The meshwork of
precedents, in the meantime, has become so closely knit,
that, owing to the existing binding force of precedents
there is no longer any material difference between the
continental and the Anglo-American systems of criminal law.
Jescheck is therefore correct in stating that the "era of
unfettered power to create new law has come to an end and is
a matter of the past."[14]
In addition thereto it has to be stated that since the
beginning of the second half of the nineteenth century
criminal law in England and the USA is more and more
regulated by statute.[15] Today, in England, most provisions
of criminal law and most of the definitions of offences are
based upon statute.[16]

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